Patent Law—Prior Art

Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc., No. 17-1229

The Leahy-Smith America Invents Act (AIA) prohibits patents from issuing for “prior art.” Prior art has long included inventions that were already in public use or that were “on sale,” but the AIA’s definition of “prior art” was amended in 2011 to include inventions that were “in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.” 35 U.S.C. § 102(a)(1). After the U.S. Court of Appeals for the Federal Circuit held that the confidential sale of an invention caused that invention to meet the definition of “prior art,” notwithstanding the fact that the invention was not “otherwise available to the public,” the Court today granted certiorari to consider whether the confidential sale of an invention will cause it to satisfy the definition of “prior art” for purposes of determining patentability.